Spherix, Inc. v. United States

62 Fed. Cl. 497, 2004 U.S. Claims LEXIS 277, 2004 WL 2397351
CourtUnited States Court of Federal Claims
DecidedOctober 18, 2004
DocketNo. 04-1488C
StatusPublished
Cited by17 cases

This text of 62 Fed. Cl. 497 (Spherix, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spherix, Inc. v. United States, 62 Fed. Cl. 497, 2004 U.S. Claims LEXIS 277, 2004 WL 2397351 (uscfc 2004).

Opinion

OPINION

CHRISTINE O.C. MILLER, Judge.

This post-award bid protest is before the court after argument on plaintiffs motion to [498]*498enjoin performance of a government contract for a six-week period pending a decision on its protest before the Government Accountability Office (the “GAO”). Specifically, plaintiff seeks to enjoin the Government from continuing to override the automatic statutory stay of proceedings issued pursuant to the Competition in Contracting Act, 31 U.S.C. §§ 3553(c)(1), 3553(d)(3)(C) (2000) (the “GICA”), upon plaintiffs timely bid protest.

FACTS

1. General background

This motion for injunctive relief implicates a history of contractual dealings between Spherix, Inc. (“plaintiff’), and the Government. The recitation of facts is drawn from plaintiffs complaint and two recent related Court of Federal Claims reported decisions involving the same parties and the same factual background, Spherix, Inc. v. United States, 58 Fed.Cl. 351 (2003) (“Spherix II”) (addressing the court’s jurisdiction of plaintiffs protest of sole-source award), and Spherix, Inc. v. United States, 58 Fed.Cl. 514 (2003) (“Spherix III”) (ruling on plaintiffs motion for a preliminary injunction to prevent sole-source award). A third, earlier, bid protest has no record of judicial action. See Spherix, Inc. v. United States, No. 03-1170C (Fed.Cl., filed May 9, 2003) (voluntary dismissal) (“Spherix I”).

Currently, two reservation systems exist for federal recreation facilities: the National Recreation Reservation Service system (the “NRRS”) and the National Park Service reservation system (the “NPRS”). The NRRS was created in 1995 when the National Forest Service (the “Forest Service”) of the United States Department of Agriculture (the “USDA”), the United States Department of the Interior (the “DOI”), and the United States Army Corps of Engineers (the “ACE”) attempted to establish a single reservation system for the nation’s federal recreation facilities. Spherix II, 58 Fed.Cl. at 353. Along the way to the realization of a global NRRS, however, the National Park Service (the “NPS”), an agency of the DOI, determined that it possessed “unique needs” for servicing “historic property such as the Washington Monument and Independence Hall,” id., and decided to maintain its own reservation system in the form of the NPRS.

Plaintiff, a small business that as part of its services provides reservation services for federal- and state-owned camping and touring properties, has been awarded contracts for the NPRS since 1998, while defendant-intervenor ReserveAmerica Holdings, Inc. (“intervenor”), which also contracts for the same services within the Forest Service and DOI, has been awarded contracts under the earlier NRRS. Compl. filed Sept. 23, 2004, 116. The NRRS “provides reservation services for more than 1900 USDA and ACE campgrounds, cabins, and other facilities[,]” while the NPRS covers “reservation services for at least 30 NPS parks and tour ticketing at five NPS facilities.” Spherix II, 58 Fed. Cl. at 353.

The Declaration of Richard C. Levin, Sept. 22, 2004, President of Spherix, Inc., submitted with plaintiffs moving papers, speaks to the history of this dispute and plaintiffs performance of its NPRS contract. Specifically, Mr. Levin attests that plaintiffs performance on the NPRS contract was rated “outstanding.” Levin Deck, Sept. 22, 2004, 113. He details the contentiousness that has characterized this effort to create a single “one-stop” unified service, including the Forest Service’s attempt to make a sole-source award to intervenor for sites that had been placed initially under an NPS solicitation in late 2002. Plaintiff was confident that it would receive the contract award; intervenor did not submit a proposal for this contract. Before the contract was awarded, however, the Office of Management and Budget (the “OMB”) cancelled the solicitation, stating that it recognized a “need to consolidate NPS facilities into the NRRS as part of the President’s E-Government Recreation One-Stop Initiative.” Spherix II, 58 Fed.Cl. at 353. Plaintiff asserts that the OMB required the NPS to place its reservation system under the supervision of intervenor’s NRRS, in effect giving intervenor a sole-source award for which it did not compete.

Following this OMB decision, NPS sites were added to intervenor’s NRRS. Spherix II, 58 Fed.Cl. at 353. Plaintiffs protest to [499]*499the GAO was dismissed, after which plaintiff filed suit in the Court of Federal Claims to enjoin the consolidation of the NPS sites with the NRRS. The ease was voluntarily dismissed pursuant to RCFC 41(a)(l)(I), see Spherix I, No. 03-1170C, when it became apparent that plaintiffs current NPS sites were not going to be “consolidated with the NRRS, and that a new solicitation would be offered in the spring of 2004 for the NRRS,” Spherix II, 58 Fed.Cl. at 353, which would afford both plaintiff and intervenor the opportunity to compete for the award. This understanding was supported by a status report submitted by defendant on June 16, 2003, in Spherix I, representing that no intention had been manifested to consolidate plaintiffs currently performed services into the contract held by intervenor. Def.’s Status Report filed June 16, 2003, U1.

Despite this planned solicitation, the Forest Service awarded seventeen NPS sites to intervenor. Spherix II, 58 Fed.Cl. at 353. These sites had not been part of either the NPRS or the NRRS, so intervenor’s contract required modifieation-beyond the scope of the original contract, according to plaintiff-in order to add the new sites. Plaintiff filed an agency-level protest with the Forest Service and the Park Service on June 26, 2003, complaining that the addition of such facilities was outside intervenor’s contract, violated the CICA, and gave intervenor an unfair competitive advantage for the 2004 proposed solicitation. Id.

On August 7, 2003, in order to effect these steps toward consolidation of all reservation sites, the Secretary of Agriculture invoked 41 U.S.C. § 253(c)(7) (2000), which allows “an executive agency [to] use procedures other than competitive procedures only when... (7) the head of the executive agency (A) determines that it is necessary in the public interest to use procedures other than competitive procedures in the particular procurement concerned” and properly notifies Congress. 41 U.S.C. § 253(c)(7); see Spherix III, 58 Fed.Cl. at 518. The Secretary found that it was in the public interest to award the contract to intervenor non-eompetitively. When, on August 12, 2003, the Forest Service published a notice of its intent to award a sole-source contract modification to intervenor for additional facilities, plaintiff timely filed a response offering to compete for the services. The Forest Service did not respond to this offer. See Levin Decl. 1118. The Forest Service’s sole-source award eventually was upheld in Spherix III with the court’s finding that the Secretary of Agriculture properly executed her authority under 41 U.S.C. § 253(c)(7),

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Bluebook (online)
62 Fed. Cl. 497, 2004 U.S. Claims LEXIS 277, 2004 WL 2397351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spherix-inc-v-united-states-uscfc-2004.